TJ & RC Walsh Pty Ltd as trustee for the Trevor Walsh Family Trust No 2
[2013] QCAT 25
•21 January 2013
| CITATION: | TJ & RC Walsh Pty Ltd as trustee for the Trevor Walsh Family Trust No 2 [2013] QCAT25 |
| PARTIES: | TJ & RC Walsh Pty Ltd as trustee for the Trevor Walsh Family Trust No 2 |
| APPLICATION NUMBER: | ADL070-12 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Susan Gardiner, Member |
| DELIVERED ON: | 21 January 2013 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. TJ & RC Walsh Pty Ltd as trustee for the Trevor Walsh Family Trust No. 2 is exempt from the operation of sections 7(f), 45, 46, 76, 77 and 81, 82 and 83 of the Anti-Discrimination Act 1991(Qld) for the period of 5 years in respect of its activities in relation to the property known as the Little Mountain Home Park situated at 72 Mark Road West, Little Mountain, Caloundra in the State of Queensland. |
| CATCHWORDS: | Anti-discrimination – Where application for exemption from discrimination on the basis of age – goods and services, disposition of land and accommodation – manufactured home park – restriction to persons aged over 50 to become residents |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Application
TJ & RC Walsh Pty Ltd as trustee for the Trevor Walsh Family Trust No 2 is the park owner of the Little Mountain Home Park. The Park is a relocatable home park for manufactured homes at Caloundra and provides affordable housing for people 50 years and over.
TJ & RC Walsh Pty Ltd applies for an exemption from the operation of the Anti-Discrimination Act 1991[1] in order to provide housing to people over 50 years of age in the village. TJ & RC Walsh Pty Ltd seeks the exemption for a period of 5 years, which is the maximum period permissible under the Act.
[1] Exemptions are sought from the following sections: 7(1)(f), 45, 46, 76, 77, 81 to 83.
The Walsh family purchased the park in 2011. It has been functioning as a residential park for people who are 50 years and over for many years. Previous exemptions have been granted to other owners to allow targeting of older residents.
The previous owners, J & D Richards Developments Pty Ltd were granted a renewed exemption on 25 August 2010 from the application of sections 7(f), 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 until 27 July, 2015. The change of ownership has required a further application.
QCAT is required to provide a copy of the application to the Anti-Discrimination Commissioner and to have regard to any submission made by the Commissioner. A copy of the application was sent to the Commissioner on 9 August 2012. The Commissioner has informed QCAT in a letter received by the Tribunal on 12 November 2012 that he has no objection to an exemption being granted to TJ & RC Walsh Pty Ltd and no other submissions as to process or substance.
The specific provisions of the Anti-Discrimination Act 1991 (the Act), from which the renewed exemption is sought are:
(a)s 7(f) (Discrimination on the basis of age);
(b)ss 45 and 46 (Goods and Services Area);
(c)ss 76 and 77 (Disposition of Land Area); and
(d)ss 81, 82 and 83 (Accommodation Area).
In considering this application, I must first examine whether an exemption is necessary[2] as conduct first appearing to breach the provisions of the Anti-Discrimination Act 1991 may be excused by specific exemptions or defences in the Act and it may not be necessary to grant a general exemption under section 113.
[2]Exemption application Re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
Section 104 of the Anti-Discrimination Act 1991 provides a person may carry out some conduct to benefit the members of a group of people with an attribute for whose welfare the conduct was designed and in doing so, the conduct is not discriminatory if the purpose for carrying out the conduct is not inconsistent with the Anti-Discrimination Act 1991.
This means that an exemption under section 113 may not be necessary if the provision of accommodation and associated facilities in the park was to benefit the members of a group of people with an attribute for whose welfare the accommodation was designed.
I am not satisfied that this defence would be sufficient to excuse the restriction of accommodation in the park to persons aged 50 years and over and rely on and agree with the reasoning in Palmpoint Pty Limited[3], in particular that age, quite unlike the other attributes in the Act, cannot clearly identify a person as belonging to a particular group and there is a wide variety of attributes in the 50+ age group.
[3] [2011] QCAT 140 at paras 18-21.
The Act recognises that everyone should be equal before and under the law and have the right to equal protection and benefit of the law without discrimination but that the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone[4].
[4] Anti-Discrimination Act 1991, Parliament’s reasons for enacting, reasons (6)(a) and (c).
TJ & RC Walsh Pty Ltd have provided evidence from the Australian Bureau of Statistics, the 2011 census, the Sunshine Coast Council and 3 local real estate agents to show that people under 50 years of age are not disadvantaged by being excluded from residing in the park as other suitable accommodation is available to them. There are currently over 20,000 dwellings available to those under 50 with 3,000 dwellings currently unoccupied.
The population trends show that younger people are leaving the area to obtain work and education and that the number of people over 50 in the postcode is increasing. Indeed the demand for this type of accommodation is growing and there are a number of manufactured home parks in the Caloundra area and its surrounds that have these age restrictions in place with wide advertising of the lifestyle and amenities for this resident group.
I am satisfied that it is respectful of the dignity and worth of older persons in our community and to their benefit to provide affordable and appropriate accommodation to this section of our community to the potential exclusion of younger people whose needs are otherwise appropriately catered for in the same area and I am satisfied that there exists an appropriate basis for this exemption.
I grant an exemption to TJ & RC Walsh Pty Ltd as trustee for the Trevor Walsh Family Trust No 2 from the operation of sections 7(f), 45, 46, 76, 77 and 81, 82 and 83 of the Anti-Discrimination Act 1991 for the period of 5 years in respect of its activities in relation to the property known as the Little Mountain Home Park situated at 72 Mark Road West, Little Mountain, Caloundra in the State of Queensland.
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